What the Timothy Foster Case Means for Discrimination Law

Timothy Foster was convicted of murder in Rome, Georgia in 1987 by an all-white jury and sentenced to death. He was just 19-years-old at the time. Prior to his trial, five potential jurors (all black) were struck. One for cause, and four others because the prosecution used their “peremptory strikes”.

Note: A peremptory strike allows either the prosecution or defense to strike potential jurors without providing a reason.

Timothy Foster brought his case all the way to the U.S. Supreme Court. He argued that the four peremptory strikes were used solely on the basis of race, and striking people because of their race was found unconstitutional by the Supreme Court in 1986.

To understand why this case may be limited in scope, you have to understand the 1986 decision in Batson v. Kentucky, and the truly unique facts of Timothy Foster’s trial.

In 1986, the Court ruled that while parties do not need to provide a reason for their peremptory strike. Jurors cannot be removed solely on the basis of race. In order to determine if race was the sole or deciding factor, the Court set up a three-step analysis. First, the Defendant must show that peremptory strikes were used to exclude all or most members of a particular race. Then, the analysis moves to the Prosecutors who must provide legitimate, non-racial reasons for using the strikes. The third step is for the judge(s) to determine whether the jurors were struck because of their race or for the reason Prosecutors provide.

The scope of this decision, however, is likely limited. The decision was almost entirely tailored to the specific facts of Timothy Foster’s trial. Evidence of racial discrimination was egregious. Through the Georgia Open Records Law, Timothy Foster was able to review all the prosecution’s trial notes (not something that all Defendants would/will have access to). There he found notes specifically discussing the races of potential jurors. And it’s important to note that Timothy Foster’s trial was only a year after the Batson v. Kentucky decision. For better or worse, prosecutors may be better at hiding their biases in the present day.

The Timothy Foster decision bolsters the Batson v. Kentucky ruling and reaffirms that racial discrimination (across-the-board) is unconstitutional. There are questions as to how far this case will travel. It could be limited, but it could also be a door to showing racial bias in the use of the death penalty.

For more than 30 years, the lawyers at Parks, Chesin & Walbert have been committed to representing clients in a wide array of litigation matters, including constitutional disputes, employment discrimination, civil rights, class actions, government contracting, and catastrophic injury cases.